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Press Copy -- 01-24-12 Submission With Exhibits 1-17 -- Red Actions

Press Copy -- 01-24-12 Submission With Exhibits 1-17 -- Red Actions

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Published by Ben Popken

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Published by: Ben Popken on Feb 02, 2012
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SC-105, Item No. 3Heather Peters v. American Honda Motor Co., Inc., Case No. 11S02156January 24, 2012
Peters v. AHM 
-- 01-24-12 Attachment to Form SC-105, Item No. 3Case No. 11S02156 - Honda’s Response to Issues Raised in 01-09-12 Order
American Honda Motor Co., Inc. (“AHM”) appreciates the opportunity to provide theCourt with additional information pertinent to the Court’s decision and provides the followingresponse to the Court’s January 9, 2012 Memorandum of Ruling. AHM is not liable to Ms.Peters for accurately repeating the EPA fuel economy estimates in its advertising. That isespecially so because the advertising said only that the vehicles would get “up to” the EPAestimates, and because Ms. Peters’ purchase decision relied on the federally mandated Monroneylabel with its many qualifications. In fact, many Civic Hybrid owners have responded to news of the San Diego class action and this case by writing AHM to report that their vehicles often meetor exceed the EPA fuel economy estimates. They praise the “remarkable” mileage they haveachieved for years and express disappointment that broad and unfair accusations have beenleveled against AHM. AHM is seeking to settle the class action to promote customer goodwilland avoid the high cost of continuing litigation. Whatever their cause, however, Ms. Peters’asserted difficulties do not reflect any broader problem, and provide no basis for any recovery.
The Applicable Statutes Of Limitations
Ms. Peters bought her Civic Hybrid in April 2006, but did not sue AHM until more thanfive years later in November 2011. We agree with Ms. Peters that the applicable statutes of limitations on her claims range from two to four years. Under the “discovery rule,” whichapplies to her claims for intentional misrepresentation (C.C.P. § 338(d)), “[t]he statute of limitations begins to run when the plaintiff suspects or should suspect that his or her injury wascaused by wrongdoing—when the plaintiff has notice of information or circumstances that wouldput a reasonable person on inquiry.”
San Francisco Unified Sch. Dist. v. W.R. Grace & Co.—Conn.
(1995) 37 Cal.App.4th 1318, 1326. Within a few months after she bought the vehicle inApril 2006, Ms. Peters was aware of the allegedly deficient performance, and thus should havesuspected the type of wrongdoing she now alleges. The statute of limitations on some of herclaims may have been tolled, however, under the doctrine enunciated in
 American Pipe &Construction Co. v. Utah
(1974) 414 U.S. 538, 552–556 (as limited in
 Jolly v. Eli Lilly & Co.
(1988) 44 Cal.3d 1103, 1118-26, and
San Francisco Unified 
, 37 Cal.App.4th at 1336-41).
Ms. Peters’ Claims Relating To The EPA MileageEstimates Are Barred By The Doctrine Of Laches
Regardless of 
 American Pipe
, however, Ms. Peters’ mileage-based claims are untimelyunder the doctrine of laches. “The defense of laches is derived from the maxim that the lawhelps the vigilant, before those who sleep on their rights. Cal. Civ. Code § 3527.”
 In re Marriage of Plescia
(1997) 59 Cal.App.4th 252, 256 (1997). That defense “requiresunreasonable delay plus either acquiescence in the act about which plaintiff complains orprejudice to the defendant resulting from the delay.”
Calif. School Employees Ass’n v. TustinUnified School Dist.
(2007) 148 Cal.App.4th 510, 521.Ms. Peters has slept on her rights. Although she now claims to have sustained substantialdamages, Ms. Peters did not raise
issues with AHM until over five years after purchasing hercar. Rather, she enjoyed all the benefits of ownership for that time, during which her warrantiesexpired on almost all components other than the IMA battery. The battery has several remainingyears on its warranty (a warranty that will be extended an additional year for class members if the proposed settlement now under consideration in San Diego receives final approval).
SC-105, Item No. 3Heather Peters v. American Honda Motor Co., Inc., Case No. 11S02156January 24, 20122
Peters v. AHM 
-- 01-24-12 Attachment to Form SC-105, Item No. 3Case No. 11S02156 - Honda’s Response to Issues Raised in 01-09-12 Order
Furthermore, while Ms. Peters now claims to reject the proposed San Diego settlement,only two years ago she was willing to participate in a proposed settlement that provided less inbenefits to class members than the current settlement. Ms. Peters’ mileage claims wereencompassed by the proposed settlement of 
True v. American Honda Motor Co.,
No. EDCV 07–0287–VAP (OPx) (C.D. Cal.);
749 F.Supp.2d 1052 (C.D. Cal. 2010). Peters was aware of her mileage issues long before that action was filed on March 9, 2007, and still longer before the
court entered its preliminary approval of a proposed settlement and certification of asettlement class on August 27, 2009.
See id.
at 1058. There is no evidence, however, that Peterseither objected to or intended to opt out of that settlement, even though the terms of thatsettlement were less favorable than those now under consideration in San Diego.
See id 
. at 1061;
at 1060 (noting that class members had an opportunity to opt out). If Ms. Peters truly had alegitimate separate claim, she should have opted out in 2010 rather than waiting yet another yearuntil the carpool lane privileges for her hybrid vehicle expired.
www.arb.ca.gov/carpool.htm.Ms. Peters’ long delay in making her individual claims, however, has prejudiced AHM’sability to defend against her stale claims. She did not bring her vehicle in to address her currentcomplaints during its 3-year warranty period when she claims to have had poor mileage. Andshe did not give AHM (rather than Honda dealers who are separate entities independent of AHM) a chance to inspect her vehicle to determine whether there was a problem with it and whatexactly the problem might be. Her action should be dismissed on that basis.
Ms. Peters Has Abandoned Her CLRA Claim
Ms. Peters indicated in her January 11, 2012 submission that she is no longer making aclaim under the California Consumers Legal Remedies Act (“CLRA”).
Peters’ Jan. 11, 2012Request for Court Order and Answer, first attachment page. Accordingly, Ms. Peters is limitedto the narrower remedies available under her remaining claims.
AHM Is Not Liable For Its StatementsRepeating EPA Mileage Estimates
 No misrepresentation
All of Ms. Peters’ claims require her to prove amisrepresentation, but she has not proved any deception here. Ms. Peters cannot base any claimsfor liability on the supposedly deceptive or inaccurate nature of AHM’s representations that the2006 Civic Hybrid would get “up to” the mileage per gallon (mpg) in the EPA estimates.
SeePaduano v. American Honda Motor Co.
(2009) 169 Cal.App.4th 1453.Her “warranty claims fail” outright.
at 1467. “[I]t is clear that the EPA mileageestimate does not constitute a warranty.”
(citing 49 U.S.C. § 32908(d)). “[T]o the extent thatHonda identified the EPA fuel economy estimates in the Monroney sticker and reiterated thoseEPA mileage estimates in its own advertising, Honda’s provision of those estimates does notconstitute an independent warranty that [Peters]’s vehicle would achieve the EPA fuel economyestimates or a similar level of fuel economy.”
Moreover, “[a]s a matter of law, there is nothing false or misleading about Honda'sadvertising with regard to its statements that identify the EPA fuel economy estimates for thetwo Civic Hybrid models.”
at 1470. It is true that a 2-1 majority of the
court heldthat there were triable issues of fact as to whether certain statements in the vehicle advertising

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